Blood Law

Does it matter that the Red Cross now says Syria is technically in a state of "civil war"?

The International Committee of the Red Cross is the legally recognized custodian of the laws of war and thus, among its other prerogatives, the arbiter of the semantics of both interstate and internal conflict. At the same moment that parts of Damascus are now free-fire zones, the ICRC has finally declared that the conflict in Syria is a "civil war" under international law. In the short term, at least, this is unlikely to have much immediate effect on the fighting in that country, nor are the rebels likely to welcome the designation -- which for the average fighter, merely confirms the obvious -- as much as they would, say, welcome more military help from abroad, not to mention a full-scale international intervention. In any case, terminologically speaking, the ICRC is a latecomer to the party, but there are sound reasons for the organization having decided to wait before rendering a verdict. At least in theory, an ICRC finding has important legal implications for both sides in the fighting, whereas the declarations of other actors are more expressions of opinion than fact.

Tellingly, the other principal actors in the Syrian conflict have shown no such restraint. The United Nations has been using the term "civil war" for months; the Assad regime has spoken of the insurrection in terms of terrorism; the leaders of the Free Syrian Army and other elements of the insurgency have described the conflict in the language of liberation. But all sides are clear that their conflict is one for control of the Syrian state, which is about as good a definition of civil war as it is possible to come by. But this begs the question: if fighters on the ground are convinced they are fighting a civil war, should anyone care all that much about the ICRC's demarche one way or the other?

Perhaps surprisingly, the answer is yes. To be sure, such exercises in nominalism can indeed be the meaningless intellectual pyrotechnics that their detractors believe them to be. And there is no question that the terms by which conflicts are designated do not always matter. But at other times -- and the Syrian case is one of them -- how a conflict is described can matter, desperately. Anyone doubting this need only think back to the Clinton administration's frantic effort at the U.N. in the spring and summer of 1994 to prevent the Security Council from using the word "genocide" to describe the catastrophe then unfolding in Rwanda. Washington did so because it believed -- even if many international lawyers did not -- that by declaring what was taking place in the Great Lakes region of Africa was indeed a genocide would impose an affirmative legal obligation under the U.N. Genocide Convention of 1948, which had finally been ratified 40 years later by the United States. At the same time, the French government was also resisting the term, though more out of its connection to the Hutu power regime that was instigating the genocide than out of any worries about the designation requiring an intervention.

Rwanda is scarcely the only relevant example. The debate over when and under what conditions it is legitimate for outside actors to intervene militarily in the internal affairs of countries deemed to be abusing their own populations -- a global argument that, for better or worse, culminated in the adoption of the doctrine of the so-called Responsibility to Protect (R2P) --- has revolved around legally binding definitions as much, if not more, than about moral sentiments. The law may be an ass, but to paraphrase John Locke's celebrated description of reason, international law may be very well all we have to limit the horrors of war and the crimes committed by governments against their own peoples. This is because even the most callous great powers know that arguments about whether a conflict is a rebellion or an act of terrorism may help determine whether their efforts in response succeed or fail -- and most certainly what their efforts will be. If the years since 9/11 hold any lessons, they should at least have taught us that even torturers want legal opinions that justify their deeds.

In the Syrian case, the ICRC's declaration has real world implications both for the belligerents and for outside actors. On the ground in Syria itself, the designation of the conflict as a civil war broadens the categories under which both sides can be prosecuted for war crimes under international humanitarian law, since while prosecutions for crimes against humanity can take place whatever the nature of the conflict, the broader category of war crimes can be applied only when a state of war has been found to exist. It was because of this, not only because of the murderous denialism so often attributed to the Assad dictatorship, that Syrian officials at the United Nations fought so hard to prevent the term civil war from being used, and international supporters of the insurrection pushed so zealously for its adoption, even though, as a number of human rights officials both inside and outside the U.N. have pointed out, the rebels are thought to have committed atrocities too. Again, this distinction between the various statutes under which abusers can be prosecuted may seem like a technicality, but it is anything but one. Indeed, the gravity of the usage was such that in mid-June, reportedly under Russian pressure, U.N. Secretary General Ban Ki-moon overruled his head of peacekeeping operations, Hervé Ladsous, who had used the term, and declared that the world body would not "characterize the conflict." The ICRC's decision draws a line under that debate, and, whether wittingly or unwillingly, delivers one more blow to the Assad regime by countering its claim that it is only battling terrorists in the pay of outside forces. 

Given that war crime prosecutions are unlikely to take place while the conflict in Syria rages on, and Assad and his immediate circle believe, rightly, that they are fighting for their own survival, an International Criminal Court indictment is unlikely to rank high on their list of concerns. But at a time when -- as numerous recent defections show -- many other Syrian officials must be contemplating whether to remain loyal to the regime or to defect, the possibility of an indictment for war crimes could certainly be a consideration. To be sure, technically the ICRC's judgment applies to regime and insurgency alike, but in practice its weight is likely to fall most heavily on the government side, not least because the opposition has a "friend in court" in the United States, France, Turkey, Saudi Arabia, and Qatar.

As the Libyan case shows, the International Criminal Court is far more likely to prosecute those its powerful members oppose (or, indeed, have overthrown) than those they have supported diplomatically, economically, and militarily. And anyone who does not think the law is as much shaped by political pressure as statute -- whether it is the U.S. Supreme Court judgment on the Affordable Care Act, the German Constitutional Court's current consideration of the legality of Germany's participation in various European financial bailout mechanisms, or the decisions at The Hague of whom to indict and to whom to give a pass -- has probably not been paying attention. With the exception of Russia and Iran, the major world powers as well as important elements of the U.N. Secretariat have either explicitly or implicitly come out for the rebels, and designating what is now taking place (whether or not the ICRC intended to do so) as "civil war" establishes a moral and institutional equivalence between the government and the insurgents that serves to partly legitimize the rebellion and delegitimize the Assad regime.

This is not to deny that the ICRC was on solid ground when it concluded that the Syrian conflict is now a civil war. To the contrary, given the fact that the fighting has now reached Damascus, such a judgment was all but inescapable. But even if one chooses to believe that the ICRC acted purely on impartial legal grounds (which does not seem all that likely, since, to put it charitably, the organization's history is hardly one free of political considerations, we should not confuse intention with effect.

The practical effect of the ICRC's action will be pro-insurrection, or, at least anti-Assad. That is why it is being so warmly welcomed in Washington, Paris, and Ankara. And if one believes that any other outcome besides the fall of the Assad regime is unacceptable, then the ICRC's decision is bound to seem just in both the legal and the moral sense of the word. But history is not a morality play, much as supporters of the insurrection in Syria have chosen to portray it that way. The back story to the ICRC decision is more complicated. But perhaps, as Bismarck said, no one should look too closely at the making of law or sausages.



The Short List

Do Romney's top veep choices know anything about the world?

Speculation is brewing that Mitt Romney may announce his vice presidential pick as early as this week, and while there's still room for a Palin-esque surprise, the conversation has mostly settled on the following six names. While former Secretary of State Condoleezza Rice was briefly floated as a possibility, her support for abortion rights and association with some of the more controversial legacies of the George W. Bush administration make her a pretty unlikely pick. The names that are left don't have an awful lot of foreign-policy experience, but in recent months some have been taking steps to burnish their international credentials.

AFP/Getty Images

Rob Portman

Ohio Senator

VP Buzz: Portman has reportedly been on the Romney campaign's shortlist since at least April. The former Bush administration budget chief and congressman is reportedly popular among influential Republican insiders and could help the Romney campaign in Ohio, a key battleground state.

Foreign Policy credentials: According to former White House Deputy Chief of Staff Joe Hagin, Portman "has an immense understanding of the budget, the tax code and trade and foreign policy" and indeed may have more international experience than anyone else on the Romney shortlist -- save long-shot candidates like Condoleezza Rice -- having served as U.S. Trade Representative from 2005 to 2006. Portman sits on the Senate Armed Services committee and is the ranking republican on its Emerging Threats and Capabilities subcommittee. He recently made a high-profile trip to Afghanistan, Israel, and Jordan -- which included meeting with Israeli Prime Minister Benjamin Netanyahu -- in what was widely seen as an attempt to burnish his vice presidential credentials. In Afghanistan, he met with U.S. troops and local officials and expressed concerns about the Obama administration's withdrawal timeline. In a recent CNN interview, Portman stopped short of endorsing military intervention in Syria but called for the United States to take a greater leadership role in assisting the country's rebels. He has co-sponsored a Senate Resolution opposing a "containment" strategy in dealing with Iran's nuclear program.

One potential Achilles heel for Portman may be his time as a lobbyist for Washington firm Patton Boggs in the mid-1980s. The firm's clients at the time included the government of Haiti, which was ruled at the time by dictator Jean-Claude "Baby Doc" Duvalier, though the firm denies that Portman ever worked on behalf of the Haitian government.

Brendan Hoffman/GettyImages

Tim Pawlenty

Governor of Minnesota

VP Buzz: The New York Times reported on July 15 that Pawlenty, along with Portman, is a top contender for the ticket. The governor was also reportedly high on John McCain's list in 2008 and this year launched a short-lived presidential candidacy of his own. Pawlenty was early to endorse Romney and has been an enthusiastic surrogate throughout the campaign.

Foreign Policy credentials: Aside from trade missions and trips to visit Minnesotan troops overseas, Pawlenty's international resume is pretty light. As a candidate in June 2011, Pawlenty gave a speech at the Council on Foreign Relations (CFR) which was billed as a rebuttal to Obama's speech a month before on the Arab Spring. In the speech, Pawlenty attacked not only the president but elements of his own party, saying, "Parts of the Republican Party now seem to be trying to outbid the Democrats in appealing to isolationist sentiments."

Though he doesn't describe himself as a neoconservative, Pawlenty seemed, in the speech, to take his queues from George W. Bush's "freedom agenda," criticizing Obama for being too hesitant to call for the overthrow of Egypt's President Hosni Mubarak and being to slow to use force against Libya's Muammar al-Qaddafi. Like Romney, he also called for a more forceful response to the Iranian nuclear program. "From what we can tell, Gov. Pawlenty has decided that the George W. Bush foreign policy is where he's decided to stake his flag," CFR senior vice president James Lindsey told FP after the speech.

Charlie Neibergall-Pool/GettyImages

Bobby Jindal

Governor of Louisiana

VP Buzz: Jindal is still best known nationally for his awkward response to Obama's first State of the Union address, but there's been recent buzz that his sterling credentials with social conservatives could help Romney reassure voters unsure about his earlier positions on issues like abortion and gay marriage.

Foreign Policy credentials: During his brief congressional career, Jindal served on the Homeland Security Committee, but his resume is pretty light on international issues. In his book, Leadership and Crisis, Jindal wrote that he opposes cuts to missile defense and doesn't believe foreign terrorists should be read Miranda rights.

Jindal is the son of Indian immigrants and the first Indian-American governor in U.S. history. As governor he has supported legislation cracking down on businesses that hire illegal immigrants. With the Obama administration's energy policies in the crosshairs following the controversial Keystone XL pipeline decision, Jindal might make an effective attack dog. After the 2010 Deepwater Horizon oil spill off the coast of Louisiana, he opposed the Obama administration's temporary moratorium on offshore drilling.

Scott Olson/GettyImages

Paul Ryan

Wisconsin representative

VP Buzz: A number of reports rank Ryan as the fourth name on the Romney campaign's shortlist. As chairman of the House Budget Committee, Ryan has been one of the GOP's best-known public figures and the party's leading voice on economic policy.

Foreign Policy credentials: "Path to Prosperity," the alternative budget proposal Ryan put forward in March, contained huge cuts to U.S. development and diplomacy funding, while taking "several steps to ensure that national security remains government's top priority." His budget would have cut the federal government's international affairs account, including State Department and USAID funding, by nearly $10 billion by 2016.

Though best known for his conservative economic policies, Ryan put forward his vision for international affairs in a June 2011 speech at the non-partisan Alexander Hamilton Society. The speech contained a strong defense of American exceptionalism, attacked China's "coercive population controls" and "unsound economic policies," called for closer ties between the United States and emerging economies like Brazil and India, and opposed hasty withdrawals from Iraq and Afghanistan. Ryan was an early and enthusiastic supporter of the "surge" strategy in Iraq.

Justin Sullivan/GettyImages

John Thune

South Dakota senator

VP Buzz: Thune, who had been considered a potential presidential candidate this year, has acknowledged meeting with the Romney campaign's senior advisors in Boston but says "it wasn't a meeting about what you think it's about." The socially conservative senator and GOP rising star was an effective campaigner for Romney during the Iowa caucuses.

Foreign Policy credentials: Thune spearheaded the GOP response to the Obama administration's New START arms control agreement with Russia, arguing that it "misses one opportunity after another to maintain a stable nuclear relationship between our two countries." Thune pushed for improvements to the U.S. nuclear deterrent to be made as part of the compromise on the treaty, which also brought with it benefits for South Dakota's Ellsworth Air Force Base.

Thune supported the wars in Iraq and Afghanistan as a congressman but raised some eyebrows by suggesting the war in Iraq could help the spread of Christianity there. He recently signed on to a letter by GOP senators opposing U.S. ratification of the Law of the Sea treaty.

T.J. Kirkpatrick/GettyImages

Marco Rubio

Florida senator

VP Buzz: Rubio was once considered a top contender for the job, but has been conspicuously absent on recent shortlists, perhaps due to his somewhat lackluster endorsement of Romney and questions about Rubio's campaign finances during his 2010 race?. All the same, Rubio's youth, popularity, and the fact that he would be the first Hispanic (a key demographic in the upcoming election) on a major party ticket, could make him a potential surprise pick.

Foreign Policy credentials: Rubio may have come to power with the 2010 Tea Party wave, but he doesn't share the isolationist tendencies of classmates like Rand Paul. As a member of the Senate Foreign Relations Committee, Rubio has often found himself more in agreement with Democrats like John Kerry and Bob Casey than some members of his own party -- particularly on issues related to humanitarian intervention.

In a speech at the Brookings Institution in April, which seemed calculated to position the freshman as a new congressional leader on foreign policy, Rubio repeatedly invoked the neoconservative scholar -- and Romney advisor -- Robert Kagan, in calling for a more aggressive push to force Syria's Bashar al-Assad from power, and a greater emphasis on human rights in Russia and China.

Though Rubio has been a frequent and prominent critic of the Obama administration's foreign policy, he also has some notable differences with Romney, particularly on cuts to foreign aid and Arab democracy-building programs. The child of Cuban immigrants, Rubio has proposed a GOP alternative to the DREAM Act that would allow some children of illegal immigrants to study and work in the United States -- a measure that would likely be opposed by Romney.

Recent Vice Presidential picks like Joe Biden, Dick Cheney, and George H.W. Bush were experienced foreign-policy hands, perhaps making up for the perceived shortcomings of the names at the top of their tickets. But the names of Romney's list seem to indicate that foreign policy won't be a major focus of his campaign.